Charles Kuck, ABIL PresidentMusings on ImmigrationThere is a great deal of confusion about the new provisional waiver regulation published by the Obama administration. Let's be clear, this new regulation is nothing more than a locational change in waiver processing, with the benefit being a much shorter separation time between loved ones. Now, let's get into the details!

What Does It Mean?

The waiver we are talking about is the waiver that is needed to be forgiven of the immigration offense of "unlawful presence." Unlawful presence occurs when someone is not in lawful status in the United States, regardless of their mode of entry. Typically, individuals who come into the US with a visa, retain a right to process for permanent residence in the United States, IF they are married to a U.S. Citizen, or have U.S. Citizens children over the age of 21. Those individuals who entered the U.S. without inspection (those who came illegally), cannot obtain permanent residence in the United States, even if they are married to a US Citizen or have US Citizen children over the age of 21. These people must leave the U.S. and process for their permanent residence abroad. But, as soon as they leave, because they have typically had more than one year of "unlawful presence (being illegal), they are then barred from returning to the United States for 10 years, as punishment for their unlawful entry and unlawful stay. There is already in place a "waiver" or forgiveness of this ten year bar, but the waiver or forgiveness can only be obtained AFTER the person leaves the U.S. This new regulation merely changes Where and When the waiver can be applied for. It does NOT eliminate the need of the person to leave the United States to process for residence through their spouse.

Only certain relatives of US Citizens are eligible to apply for this provisional waiver. At this time, the provisional unlawful presence waiver process will remain available only to individuals who are immediate relatives of U.S. citizens (i.e., spouses, children, and parents (if the U.S. citizen is at least 21 years of age)).

Who Can Use the New Waiver?

To use the new process, the eligible individual must be currently IN the United States. The current centralized waiver process (with U.S. processing) will remain in place for those who have already departed the United States. This process is also not available to those who's interviews have already been set by DOS as of the date of publication of the final rule (likely January 3, 2013). If the interview is scheduled AFTER that date, then the person is still eligible to process using the new system.

The new waiver process is for individuals who, when they depart, will be subject to the three and ten year bars. The current law states that only individuals who have U.S. Citizens Spouses or Parents who will suffer "Extreme Hardship" are eligible to be granted this waiver. This standard has not been changed by the new regulations. Children are NOT qualifying relatives for purposes of the waiver of the three and ten year bars. USCIS is open to considering expanding the provisional unlawful presence waiver process to include lawful permanent residents as qualifying relatives after USCIS has a better understanding of the impact of the provisional unlawful presence waiver process on agency resources and operations.

Individuals who are currently in removal proceedings are eligible for submitting the waiver, IF their removal proceedings have been administratively closed and not re-calendered at the time of filing of the waiver request. Persons in this situation need to have their immigration court cases terminated or dismissed before leaving the US to avoid delays in returning at the consulate. Supposedly, ICE will work with individuals and their attorneys to terminate deserving cases (that I will wait to give judgement on).

Individuals with final orders of removal are NOT eligible for this new program.

Simply put, the ONLY people eligible for this new waiver process are those who's only immigration problem is unlawful entry with unlawful presence.

How Does the New Waiver Process Work?

The filing fee for the new waiver process is the same as it is for the current waiver process, $585, plus an additional $85 for the biometrics fee. USCIS will not accept a filing of the Form I-601A (the new form used to file for the waiver) until March 4, 2012, and it will only accept that form once the I-130 has been approved, and the National Visa Center has begun the process for consular processing, with the necessary initial fees paid by the applicant, evidenced by the Department of State Visa Processing Fee Receipt.

In this final rule, USCIS does not modify how it makes extreme hardship determinations or how it defines extreme hardship. Consistent with how USCIS currently makes extreme hardship determinations, USCIS will consider all factors and supporting evidence that an applicant submits with his or her provisional unlawful presence waiver application. USCIS also has included in the Form I-601A instructions examples of factors to help provisional unlawful presence waiver applicants understand what can be provided to establish the required extreme hardship to a U.S. citizen spouse or parent.

USCIS will not commit to a certain processing time for these waivers, which, in the grand scheme is not a big deal, since the applicant will be in the United States with their family, but experience suggests that a processing time of 60-120 would not be abnormal.

So there you have it. A simplied description of what this new process is, and what it is not. If you think you qualify for this new process, contact us today at 404-816-8611 for an analysis of your case and your options.

_by Nataliya Rymer, Associate with ABIL member, H. Ronald KlaskoKlasko Immigration BlogForeign nationals who are immediate relatives of U.S. citizens currently in the U.S. seeking to become lawful permanent residents, but who originally entered without inspection, could soon benefit from a change in the waiver application process being proposed by U.S. Citizenship and Immigration Services. On Friday, January 6, 2012, USCIS announced that it intends to develop a framework allowing certain foreign nationals who have accrued unlawful presence in the U.S., and are thus inadmissible without a waiver, to file their waiver applications (Forms I-601) stateside.

This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.

Background

Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa) if they have previously accrued unlawful presence in the U.S. – whether by entering the U.S. without being inspected by an immigration officer or by overstaying the time allotted to them by a nonimmigrant visa obtained in the past. Those who have accrued between 181 days and 1 year of unlawful presence are subject to a 3-year bar before becoming admissible into the U.S. Those who have accrued more than 1 year of unlawful presence are subject to a 10-year bar before becoming admissible into the U.S. Immediate relatives of U.S. citizens who entered the U.S. on a nonimmigrant visa and later overstayed their time, or were admitted and inspected by an immigration officer on some other basis, are able to adjust their status without leaving the U.S. and without needing to obtain a waiver for the unlawful presence they accrued in the U.S. – immigration law forgives them for the unlawful presence. However, those immediate relatives of U.S. citizens who have accrued unlawful presence and who cannot demonstrate having been admitted and inspected by an immigration officer upon entry are unable to apply for adjustment of status from within the U.S. Immigration law requires that they depart the U.S. and apply for an immigrant visa at a consulate post abroad.

Unfortunately, this departure is what triggers the 3- and 10- year bars and subjects them to the requirement of the filing of the application for waiver of this ground of inadmissibility. To obtain a waiver of unlawful presence, foreign nationals in this predicament are required to demonstrate that, if this application for a waiver is not granted, their U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship. Because this waiver is discretionary, the individuals must also warrant a favorable exercise of discretion. While the term “extreme hardship” has not been exactly defined, this term has been interpreted very narrowly and involves the balancing of various factors.

Current Practice

The current practice of the filing and adjudication of these waivers has required that the foreign national depart the U.S. and file the waiver with the consular post processing his or her immigrant visa. This has caused significant delays during which the foreign nationals remain separated from their immediate U.S. citizen- or lawful permanent resident-relatives while the waiver is adjudicated. Moreover, the foreign national has no guarantee when he or she leaves the U.S. that the waiver will be granted, and thus, he or she faces the prospect of leaving the U.S. without the ability to return for either three or ten years.

The waivers are adjudicated by USCIS offices having jurisdiction over the particular consular post where the foreign nationals applied for their immigrant visas, by a newly-created International Operations Support Branch of USCIS located in Anaheim, California, or –at times – the USCIS Nebraska Service Center. If USCIS denies the application for waiver, their decision may be appealed to the Administrative Appeals Office (“AAO”). Because the processing times for these waiver applications at the USCIS level are currently several months, and at the AAO level are over 2 years, this delay causes significant additional hardship to the families of the foreign nationals, from whom they are currently required to be separated for the duration of the adjudication of the application, without the grant of which their immigrant visa cannot be processed.

USCIS Proposal

The contemplated change in processing is intended to reduce this burden of separation. It is, however, limited only to foreign nationals whose spouses and/or parents are U.S. citizens, and not lawful permanent residents. This change would allow the qualifying foreign nationals to file their applications for waiver of grounds of inadmissibility prior to departing the U.S. and remaining in the U.S. while the USCIS adjudicates their application. If successful, USCIS would grant a provisional waiver prior to, and dependent upon, their departure to attend their immigrant visa interview at a consular post. While the procedural details were left out of the USCIS announcement, it is anticipated in the immigration legal community that the unlawful presence waiver applications would be adjudicated by the International Operations Support Branch of USCIS in Anaheim, CA, as well as the USCIS Nebraska Service Center.

In addition to significantly reducing the time foreign nationals who have accrued unlawful presence would be forced to spend separated from their U.S. citizen immediate relatives, USCIS expects that this change would streamline the process of waiver adjudication and visa processing for the foreign nationals in question, reducing the processing time even further due to the lessened amount of time the case would have to be moved back and forth between the U.S. Department of State, the various consular posts and USCIS. USCIS also expects this to produce a welcome cost reduction associated with the processing of such cases, as the adjudicators would be located in the United States, rather in international USCIS offices.

This change is not expected to be implemented until the end of this year, and its details are still largely unclear. USCIS is expected to issue a proposed rulemaking that will address this change, along with all of its fine points and new processes. Of course, as always, with such proposals, questions linger as to whether this change will cause a further backlog in the adjudication, as well as an overall reduction in approval rates, for unlawful presence waivers. All of this remains to be seen once- and if- the rulemaking for this change is implemented and it takes place. However, one thing is clear – it seems to be the current administration’s step toward alleviating some of the painful delays caused by the backlogged and often inefficient processes within immigration law.__